The government’s proposed anti-hate law is a threat to Canadians’ religious freedoms

The law in Finland differs from Canada’s Criminal Code in several ways. But Räsänen is being prosecuted for a sincerely held religious belief, which she expressed in a reasonable manner, albeit one that is controversial. “I did not insult or call for harm against anyone. I was being criminally charged for simply expressing convictions rooted in my faith and conscience.” If the religious defence to promoting hatred in Canada is removed, it’s more likely that Canadians will also be criminally charged for simply expressing their convictions, without insulting or calling for harm in any way. There is rightly no religious defence for advocating genocide or public incitement of hatred likely to lead to a breach of the peace. No religious justification can be made for real violence or calls for violence. And the good faith religious defence has not allowed real hate propaganda or violence to go unpunished. But when it comes to the crime of wilful promotion of hatred, the law becomes more complicated and can lead to censorship of views that are not hateful but are simply disagreeable to certain portions of the population. That’s why there are four defences to that crime, including a religious defence. And indeed, the Supreme Court of Canada in R. v Keegstra referred to the defences, including the religious defence, as one of the reasons the prohibition on wilful promotion of hatred was constitutionally valid. The religious defence is an important safeguard against the abuse of the hate propaganda offence to silence religious beliefs and teachings. Removing that defence from section 319(3) of the Criminal Code will expose good faith religious teaching on such matters as marriage, sexual morality, and bioethics to a greater risk of prosecution. Of course, Justice Minister Sean Fraser recently noted that the government may be open to exempting religious texts from the wilful promotion of hatred. That provision at least ensures Canadians can read religious texts, such as Bible passages that one cabinet minister has said contain “clear hatred.” But such a compromise doesn’t do enough. Exempting religious texts allows Canadians to read directly from their religious text, but they may still be criminalized for an explanation of what they believe that text to say. In Räsänen’s case, she shared a text from the Bible. But she also expressed her beliefs about how that text applied to her context and situation. The removal of the religious defence through Bill C-9 will risk criminalizing such speech. Yesterday, the government proposed a new amendment to Bill C-9, attempting to acknowledge the value of religious discussion or debate. But that amendment would not make up for removing the religious defence in our current law, or add any further protection. Proponents of Bill C-9 also argue that we still have religious freedom in the Charter, so criticism of the removal of the religious defence is an overreaction. By the same logic, all four defences could be removed from the crime of promoting hatred because the Charter also protects free speech. However, the religious defence helps to ensure charges are not laid in the first place for religious speech that prosecutors find offensive. And having to advance Charter arguments in court is more onerous than having a statutory defence. In Räsänen’s case, the fact that Finnish law protects freedom of speech and religion did not protect her from a lengthy legal ordeal. Räsänen is just one casualty of what are perhaps well-intended hate speech laws gone wrong. Even if she is ultimately acquitted, she will have undergone a seven-year ordeal, and others in Finland may be unwilling to express their own ideas for fear of a similar result. Governments should not dictate which ideas and beliefs may be expressed. Canadians must continue to oppose the removal of the religious defence.